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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Friday, July 20, 2012

[Note: this post is based on the oral reading of the Judgment, so might be incomplete in parts. The Judgment was just released and can be found here]

Today, the International Court of Justice issued its Judgment in the case opposing Belgium and Senegal on whether Senegal is violating its international law obligations by not prosecuting, or, alternatively, not extraditing to Belgium former Chad President Hissène Habré. As shown by the history of the proceedings, and as is often the case at the ICJ, this is the end result of quite a long process between the two countries, that started in 2005. In addition, the question has been going on for even longer, essentially since Habré found exile in Senegal after having been removed from power in 1990. It should be recalled that Senegal did try to initiate proceedings in the early 2000s, but all charges were dropped because he was being prosecuted for international crimes (crimes against humanity among others, but also torture) that did not exist in Senegalese criminal law at the time. Moreover, when the AU called upon Senegal to prosecute Habré anyway in 2006, the country tried to implement new laws. However, Habré obtained an ECOWAS judgment saying that this would be contrary to the principle of legality.

Jurisdiction

Having first established jurisdiction based on the Torture Convention, the Court moved on to consider whether Belgium's contention that Senegal had violated its customary international law duty to prosecute crimes against humanity, war crimes and genocide gave the ICJ jurisdiction. The Court found that at the time of the dispute, this was not an issue, so the judges excluded jurisdiction on this ground, which means that they did not make any findings on whether a State is under an obligation to prosecute non-nationals for crimes committed abroad, only on the interpretation of the Torture Convention, more particularly 2 of its provisions:

Article 6(2): "Such State shall immediately make a preliminary inquiry into the facts".
Article 7(1): "The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."

Admissibility

Senegal also challenged Belgium's standing to bring the case. The ICJ first discussed whether the simple fact of being a party to the Torture Convention gives standing. Having recalled the object and purpose of the Convention to end impunity for torture and all States have a common interest in fighting impunity. Obligations under the convention (notably under the above mentioned provision), apply irrespective of the nationality of the perpetrator or the victims, and all States have a legal interest in the respect of the obligations. It is therefore an obligation erga omnes partes, similar to the Genocide Convention. This common interest implies that every State can ask another State to put an end to violations of the Convention, so Belgium did have standing.

Substantive violations of the Torture Convention

The ICJ then moved on to the substance of the claims of violations of the Torture Convention by Senegal. The Court recalls preliminarily the obligation to criminalize Torture in national law and establish universal jurisdiction, as a prerequisite to the satisfaction of any duty to prosecute. Senegal's adoption of such legislation in 2007 caused delay in the prosecution of Habré, and therefore affected its other obligations under the Convention.
As for the violation of Article 6(2), the preliminary investigation has for purpose to bring together elements on the alleged actions and conduct of the person. Senegal should have therefore requested more assistance from Chad and done more to investigate allegations against Habré. In light of the object and purpose of the convention, Sénégal should have established more systematically whether there were reasons to be believe that Habré had committed acts of Torture, and therefore violated its obligations under the convention to open a preliminary investigation under Article 6(2).
In relation to the violation of the duty to prosecute, the ICJ recalls that each State decides whether to proceed with a prosecution in conformity with its national laws, within the context of the obligations laid down before. The ICJ finds that Article 7(1) imposes a duty to initiate proceedings, irrespective of an extradition request from another State, as a consequence of the respect of Article 6(2). If there is an extradition request however, the duty to prosecute falls if the person is actually extradited. Extradition and Prosecution are not on the same level. Extradition is a mere option, whereas prosecution is an obligation. The prohibition against torture is a jus cogens norm, but duty to prosecute of the convention only applies to acts that intervened after the entry into force of the convention for a given signatory State. The ICJ therefore finds that the duty to prosecute only applies to Sénégal for acts before the 26 June 1987. After that date, however, the duty to prosecute applies.
The ICJ also summarily finds that the ECOWAS judgment is irrelevant for its evaluation.
Finally, Article 7(1) does not contain any timeframe, but the ICJ finds that proceedings must start within a reasonable time, especially in light of the object and purpose of the Convention to put an end to impunity for Torture. The Judgment therefore confirms the violation of Article 7(1).

As a remedy, this continued violation should be put to an end by the actual prosecution of Habré.

Some first thoughts

Based on what I've heard, I don't find the substance of the Judgment particularly surprising. It's quite obvious that Sénégal did not respect its obligation to investigate and prosecute the acts of torture allegedly committed by Habré. It is interesting how the Judgment does seem to distinguish prosecution (seen as an obligation) and extradition (seen as a option). There is therefore no actual "duty to extradite". Extradition is in effect a defense against any claim of a violation of the duty to prosecute. The other point is the question of the time frame (not) imposed by Article 7(1). I disagree with the reasoning of the judges, when they use the object and purpose of the convention to justify a "reasonable delay". the teleological interpretation is often referred to abusively in my opinion, and I would have preferred an evaluation based on actual actions and intent of the State to genuinely comply with its obligations, in which time is but one component.

One difficulty that does remain is how Senegal is to implement this judgment, in light of the ECOWAS judgment of a few years ago. I think that the ICJ should have dealt with the substance of the ECOWAS Court reasoning, but even if the ECOWAS judgment was wrong, it remains an international decision that Sénégal should comply with, in the same way that it should comply with the ICJ judgment. The ECOWAS does leave room for flexibility for Sénégal to implement an ad hoc criminal procedure which might be compatible with the ICJ Judgment, but such compatibility is at this point merely speculative, and Belgium's claim that the fact that Sénégal is now confronted with two conflicting international obligations is its own fault is beside the point. It might be true, but the fact remains that today, Sénégal still has to deal with the fact that implementing the ICJ judgment might violate the principle of legality recognized by another international court, and more importantly which is due to Habré (although I do think that the ECOWAS judgment made an incorrect reading of international law, even if I agree with them in theory). Some help from the ICJ on that point would have been welcome.

Where the Judgment might be a little more problematic is on its finding that any State party, irrespective of a particular interest in the case, can bring a claim before the ICJ based on the non-respect of the duty to prosecute torture. This finding is based on the alleged erga omnes partes nature of the obligation and the common interest of all parties to the convention that there should be no impunity for acts of torture. In effect, although the Judgment does not mention it, this reasoning seems to fall within the context of Article 48 of the ILC Articles on State Responsibility, which provides that:

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.

I tend to disagree with this reasoning, based on a moral rather than material imperative. Indeed, while the prevention of torture is certainly a legitimate common goal, the violation of the duty to prosecute, in my opinion, does not affect other State parties in the same way that, for example, the obligation not to pollute a river or the high seas might, justifying the erga omnes partescharacterization. With the confusion between the material and moral dimension of an obligation, one can claim that all multilateral treaties, whether human rights treaties, or trade agreements, contain erga omnes obligations, because why would States collectively sign such a treaty without a shared collective interest that it should be respected by everyone, in the absence of a specific interest of any particular State? Moreover, not only is this reasoning too broad, in my opinion, from a legal point of view, it can have very practical consequences. Essentially, it means that the ICJ's docket in the next few years could be swamped with claims by any State Party to the CAT against any other State Party to the CAT. Arguably, this might of course increase compliance with the Convention, but it could also become a litigation nightmare that I'm not sure the drafters had in mind (but specialists of the CAT can correct me if I'm wrong on this).

Finally, while I understand the reasoning of the Court on the customary law duties to prosecute, it is a pity to we do not have the ICJ's substantial views on this. It might have brought some clarity to a contentious field, in the same way that the Germany v. Italy Judgment rightly put to rest this idea that alleged commission of international crimes removed head of State Immunity.